How to Construe an Ambiguous Will in New York

March 10, 2020

What happens when a will bequeaths the same property to different people in two different clauses in a will, rendering the will ambiguous? A February 2020 case from New York explains what to do in order to construe an ambiguous will.

In Matter of Ash, 2020 NY Slip Op 01420 (App. Div.), the court was presented with two different clauses that bequeathed the same property to different people. The decedent’s will had three clauses at issue. A nephew was bequeathed the decedent’s house in Article 2. Articles 5 and 6 provided:

FIFTH: I bequest all of my personal property to [respondent], if he survives me.

SIXTH: All the rest and remainder of my property both real and personal I leave equally to the following persons who survive me: [list of nine named beneficiaries including respondent]

Both articles purport to distribute the decedent’s personal property to the nephew in Article 5, as well as the same personal property to a group of other beneficiaries in Article 6.

How is an Ambiguous Will Construed in New York?

An ambiguous will is construed with extrinsic evidence. The first step is determining whether to use extrinsic evidence – is the will ambiguous? The Court determined that the will here was ambiguous:

The provisions in both articles purport to direct the disposition of decedent’s “personal property.” Although facially clear and unambiguous when read independently, the articles are incapable of being read together and, as written, they cannot be reconciled. To that end, if the bequest under article 5 is interpreted as unqualified, as respondent urges, he inherits all of decedent’s personal property, leaving no residuary estate of personal property for the nine beneficiaries (including himself) to inherit under article 6. If, however, article 5 is interpreted as bequesting decedent’s tangible personal property to respondent, consisting of most of the contents of decedent’s home, which was also bequeathed to him, then the intangible personal property in decedent’s estate, comprised of cash and cash equivalents and stock valued in excess of $1.3 million, is divided among the nine named beneficiaries under article 6. Given this ambiguity that arises in attempting to read articles 5 and 6 together, we agree with Surrogate’s Court that decedent’s intent is not clear and there is an ambiguity in the will, and, thus, the resort to extrinsic proof was proper and a hearing was warranted.

The Court then explained why extrinsic evidence would be necessary:

[I]n construing a will[,] the court’s foremost objective is ascertainment of decedent’s intent, and, concomitantly, effectuating the will’s purpose. Decedent’s intent is to be ascertained ‘not from a single word or phrase, but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed.

At the evidentiary hearing, the drafting attorney testified, and his notes, emails and drafts were admitted into evidence. The drafting attorney’s testimony and the other evidence established that decedent’s intent was to distribute her personal property outside of the decedent’s home via Article 6, to the other beneficiaries:

Lewis was unequivocal in his testimony that it was decedent’s intent to divide her residuary estate, including her remaining personal property, into nine equal shares, intending to distribute that property equally to the individuals named in article 6.

The Court explained its conclusion:

To interpret article 5 as respondent urges would effectively divest the other eight residuary beneficiaries named in article 6 of their share of decedent’s intangible personal property, namely her accumulated financial holdings, as there would be no personal property in the residuary estate to distribute. Thus, we agree with Surrogate’s Court that, as decedent bequeathed her home to respondent in article 2, it follows that she intended in article 5 to award him only the home’s furnishings, subject to the specific bequest to her niece in article 4, and not the intangible personal property in article 6.

Fortunately, the drafting attorney was available to testify as to the decedent’s intent, and he had his notes and other materials to bolster his testimony in order to aid the court to construe the ambiguous New York will. Nevertheless, this is the type of drafting often seen in do-it-yourself wills that are becoming more common.